According to a 2015 Pew Research Forum survey found, 83 percent of American Jews, more than any other religious group, said abortion “should be legal in all/most cases.”
And this is not only the position of American Jewish laypeople. The Conservative Movement’s Committee for Jewish Law and Standards declared as a matter of Jewish practice and belief in a statement from 1983 that given risk of physical or emotional harm to the woman, or should the fetus have “severe defects” as stated then, that an abortion was allowed. The statement does suggest the woman consider “the many grave legal and moral issues involved” and speak with family and experts to aid her in her decision.
Even in another opinion, initially written in 1959 and passed by the CJLS in 1983, the halachic policymakers concluded that while abortion is, “morally wrong”, nevertheless it may be necessary for “therapeutic reasons.”
It is not only American Jews and religious movements that hold this way. Consider that in Israel, abortion is legal. A woman sees a three-person panel, usually made up of a social worker and two doctors, one of whom must be a woman. They consult with her and review the case. Nearly all (98%) abortions are approved by panels in Israel, and about 40,000 total take place there per year.
The law stipulates four criteria, any of which is sufficient for approval: If the woman is below 18 or over 40; if the fetus is in danger; if the mother’s mental or physical health is at risk; or if the pregnancy occurs out of wedlock or is the result of rape or incest. Furthermore, there are no laws limiting when an abortion can be performed, and a woman whose request is denied by the committee or simply doesn’t want to go before it, can still seek an abortion at a private clinic. Estimates are that about half the abortions performed in Israel are done in private clinics. Abortions are paid for entirely by the state for women aged 20 to 33, and subsidized abortions were granted for those outside that age range. Likud, Labor, and Israelis across the political spectrum support this system and even for the Rabbinate, this is not a hot-button issue, it’s just how things are in Israel.
But in the United States, after today’s Supreme Court ruling overturning the constitutionality of a federal right to abortion, we Americans find the rights of women dangerously, even mortally, curtailed.
I would also argue, the ruling does something else, something insidious and something I would have wished conservative thinking Americans, like those who serve as justices on the Supreme Court, would have considered.
Overturning Roe impedes the expression of the religious beliefs of all Americans, such as Jews, who do not see abortion as murder in the first place. It does the same for all Americans who, for whatever reasons, feel that way.
While I appreciate arguments about the flaws in the legal processes that achieved Roe in the first place, this issue is only of such outsized significance for the simple fact that some Americans wish to impose their religious ideas about abortion on the rest of us. And that is a sacrilege before the altar of American law. That is something quite different.
From the Torah forward, the weight of Jewish law (our being Jews meaning that nothing can be unanimous) comes down on the side that a fetus is different in status from a born person and that its death is not murder. Starting in Exodus 21:22-23, the penalty for causing the death of a fetus is monetary, as opposed to capital, punishment. The Mishnah states, rather graphically, that, “a woman having difficulty giving birth, it is permitted to cut up the child to remove it as her life takes precedence.” (Ohalot 7:6).
Later, the great legal minds of Rashi and Maimonides argue that this is allowed either because the fetus is not the same as a breathing person, or that even if it is, if it is causing risk to the mother, it is a rodef, a “pursuer,” whose threat of danger to the mother can be stopped up to and including ending the pursuer’s life.
This brief review of Jewish law could still lead one to want severe restrictions on abortion’s application, or on the thinking surrounding abortion, but regardless, all these sources make clear we do not see conception as the start of life.
In that way, Jewish views are part of the strain in “Western Civilization” going back to the Stoics, who saw life beginning at birth, thus abortion wasn’t murder to them.
Contrast this with the sources informing Christianity, which aligned with the Platonic view that life began at conception and thus read Jewish religious texts with this underpinning in mind and thus came to ban all abortions as it was the taking of a life.
Now if that is how you truly believe, I can understand, really I can, that you would want to impose your views on others and would vote accordingly and you might feel, that A) if you got a majority of Americans to think like you and B) the country is founded on “Judeo-Christian values” anyway, that it would be “right” to have that position come to be law.
However, the United States, in terms of its laws, is designed to protect the rights of its citizens independent of religious beliefs. It doesn’t consult or even care what Mormons or Muslims think about selling alcohol, even though their religions forbid it, because American law does not have a category of interest in that matter – it limits alcohol for minors and everyone else can get it legally, and that’s that. We don’t allow their moral discomfort or objection to limit the democratic laws of the country which is founded on separation of church and state.
In fact, in stickier cases say with Bob Jones University v. United States, the State may even intervene against the religious beliefs of individuals because of the State’s responsibility to care for its citizens’ rights, as in that Supreme Court case where the American values of fighting racism “beat out” BJU’s rights to be tax-exempt as a religious organization.
My understanding as a Jew then, is that overturning Roe, or perhaps more precisely, elevating concerns about abortion to the place they hold in American culture and law in the first place, is wrong from the point of view of Jewish Law in that it mistakes God’s will that human life begins at conception which it most certainly does not.
Further, it mistakes God’s will as disregarding the rights of women to value their own lives – both because the pregnancy is “part” of their bodies and also because any dangers the pregnancy brings on will be to them.
And furthermore, American law does not define fetuses or embryos as people under the law (corporations are people, however!). Thus, the State technically should have no legal “concern” with their rights or protections.
Like me, many of you may find the idea of abortions tragic and sad for all those involved and wish the situations requiring them needn’t occur at all. It would not be a light matter for the woman who might place her confidence in me to give her sound advice about such a decision. These, though, are not matters for the law.
As Americans, we simply can not tolerate rulings that could lead to laws imposing some Christians’ notions about when life begins on all Americans – again, because if not for that, this would not be the issue it is. As a colleague of mine who is also a lawyer quoted, “the purpose of the law is to make society possible. We turn to the law only when a form of conduct is so inimical to the existence of society as an instrument for allowing free, autonomous people to live together that legal measures are necessary.”
I am not a politician nor a political activist. I hope that what I teach might influence such people to act in a right, just, and most of all, peaceful manner for the benefit of all. While the Court’s ruling pushes us away from the right and the just, I believe in America, as I do in God, that justice, and with it holiness, will prevail in time.